School of Education News

Under the Law: Underwood examines kneeling during national anthem and student privacy

October 03, 2017

UW-Madison's Julie Underwood has authored two new Under the Law columns for Phi Delta Kappan magazine.

One post examines the rights of student-athletes in public schools to kneel during the national anthem, while another takes a look at students' privacy rights, and when backpacks can be searched.

Underwood is the Susan Engeleiter Professor of Education Law, Policy, and Practice at UW-Madison, and the former dean of the School of Education.

Underwood

Beginning 74 years ago, courts and district policy in the United States have consistently ​found that students cannot be compelled to recite or stand for the national anthem. In other words, the First Amendment supports the rights of public school students to kneel during the national anthem.

Underwood contrasts this with the NFL policy, under which professional football players, as employees, can be penalized or fired for ignoring the team and league rule that instructs players should stand at attention, face the flag and refrain from speaking during the national anthem.

"Educators who wonder how to respond if athletes and spectators begin to kneel or remain seated during the anthem would be wise to heed a long record of legal rulings about the First Amendment protections in such situations," writes Underwood in the column's conclusion.

In addition, Underwood explains in a separate Under the Law post that public schools have more leeway in searching students and their belongings than police do with searching adults. Whether or not a school can search a student's bag often rests on determining if the search is reasonable, as well as balancing the interests of the student and the school.

"The reasonableness of a search depends on the need and purpose of the search, the degree of certainty that something will be found, as well as the extent to which the search will infringe on the student’s expectation of privacy," Underwood writes.